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Fifth Circuit Court of Appeals Holds in Magee v. Coca Cola That Soft Drink Vending Machines Are Not "Sales Establishments," and Thus Not "Places of Public Accommodation" Under Title III of ADAIn Magee v. Coca-Cola Refreshments USAInc., 2016 U.S. App. LEXIS 14978 (5th Cir. Aug. 15, 2016), the Fifth
Circuit upheld the dismissal of a claim brought by a plaintiff seeking class
action certification against the owner of Coca Cola self-service automated
vending machines located in a bus depot and hospital. The plaintiff, who alleged he was blind, asserted that the vending machines violated ADA because they did not contain tactile buttons that would enable a blind patron to select his/her soft drink selection without aid from others.

Source of Controversy -
But Only One of Millions of Vending Machines of All Kinds

In explaining its central holding – that a
self-service vending machine located within a place of public accommodation is
not a “place” and therefore nota
“sales establishment” (or “place of public accommodation”) under Title III– theMageecourt adopted the reasoning and
holding of several circuits, including that of the Third Circuit in Fordv. Schering-Plough Corp., 145 F. 3rd 601,(3rd Cir. 1998).

Third Circuit's Physical Access Test for Determining What Constitutes a Place of Public Accommodation, Announced in Ford v. Schering-Plough and Reaffirmed in Peoples v.Discover Fin. Servs.Represents Majority View of U.S. Circuit Courts of AppealIn Ford, the third Circuit Court of Appeals, which adjudicates federal district court decisions arising in Pennsylvania, new Jersey, Delaware and the Virgin Islands, held that “[t]he
plain meaning of Title III is that a public accommodation is a place…In
other words, a bookstore, for example, must make its facilities and sales
operations accessible to individuals with disabilities, but is not required to
stock Brailled or large print books.” This has become known as the "physical access" or "physical entry" rule.In Peoples v. Discover Fin. Servs., Inc., 387 Fed.Appx. 179, 183 (3d Cir. 2010), the plaintiff asked the Court to reconsider Ford’s
ruling that that a place of public
accommodation must “a physical place open to public access.”The Court refused to do so, noting
it was controlled by the precedent established by Ford. Subsequently, the U.S. Supreme denied Peoples' Petition for Certiorari.Fifth Circuit’s 2016
Decision in Magee v. Coca-Cola Elects to Follow Precedent from Third,
Sixth and Ninth Circuits and Holds that Self-Serviced Vending Machines are not
Covered by Title III of ADA Because they are not “Sales Establishments”- The "Physical Access" or "Physical Entry" Rule Presently Constitutes the Majority View in the United States In Magee, the Fifth Circuit cited a wide variety of sources in support of its decision, including the Ford decision, and similar holdings previously made by the Sixth and Ninth Circuit Courts of Appeals, and in doing so rejected decisions rendered by the First,
Second, and Seventh Circuits, which have interpreted the term “public
accommodation” to extend beyond physical places.

A Petition for Certiorari
in the Magee case, filed in November 2016, is pending before the Supreme
Court. As reported by Dan Fisher in Forbes (Supreme
Court asks government if a Coke machine must be ADA compliant), on February 27 the Supreme Court docketed a request to the
Solicitor General for input on Magee’s pending Petition for Certiorari.

Justice Scalia’s dissent in PGA Tour v. Martin, 532 U.S. 661 (2001),which based upon my research is the most notable examination of the
public accommodation issue made to date by the Supreme Court, may shed some insight into how the Scalia bloc will vote if the Magee appeal is in fact adjudicated by the Court.

In Martin, golfer
Casey Martin, who had a disability that made it impossible for him to walk
18-holes of golf, prevailed before the Ninth Circuit on his claim that the PGA
Tour’s refusal to permit him to use a golf cart while he attempted to qualify
to play on the PGA Tour violated Title III.
The issue in the case was whether the plaintiff was during competition
in “Q-School” tournaments a consumer of services offered to the public covered
by ADA as opposed to being a provider of such services not covered
thereby. All conceded that golf course
is the “type of place specifically identified by the Act as a public
accommodation. §12181(7)(L).”

Holding that any member of the public with
sufficient pedigree and resources could gain entry into a Q-School tournament,
and that players in such events were at once patrons and providers, the Court
held by 7-2 majority that the PGA Tour’s failure to permit Martin to use a golf
cart violated Title III.

Justice Scalia authored a dissent, which was joined by
Justice Thomas.The initial thrust of
the dissent was that Title III was intended to protect only customers of public
accommodations, and did not protect independent contractors such as
Martin.Thereafter, Justice Scalia
addressed an issue not considered by the majority, to wit, whether Title III
requires a provider of public accommodations to make modification to its
inventory, services and/or privileges that would fundamentally alter the nature
of same:

Having erroneously held that Title III
applies to the “customers” of professional golf who consist of its
practitioners, the Court then erroneously answers– or to be accurate simply
ignores– a second question. The ADA requires covered businesses to make such
reasonable modifications of “policies, practices, or procedures” as are
necessary to “afford” goods, services, and privileges to individuals with
disabilities; but it explicitly does not require “modifications [that] would
fundamentally alter the nature” of the goods, services, and privileges.
§12182(b)(2)(A)(ii). In other words, disabled individuals must be givenaccessto the same goods, services, and
privileges that others enjoy. The regulations state that Title III “does
not require a public accommodation to alter its inventory to include accessible
or special goods with accessibility features that are designed for, or
facilitate use by, individuals with disabilities.”28 CFR §
36.307(2000); see also 28 CFR, ch. 1, pt. 36, App. B, p. 650
(2000). As one Court of Appeals has explained:

“The common sense of the statute is that the content of
the goods or services offered by a place of public accommodation is not
regulated. A camera store may not refuse to sell cameras to a disabled person,
but it is not required to stock cameras specially designed for such persons.
Had Congress purposed to impose so enormous a burden on the retail sector of
the economy and so vast a supervisory responsibility on the federal courts, we
think it would have made its intention clearer and would at least have imposed
some standards. It is hardly a feasible judicial function to decide whether
shoestores should sell single shoes to one-legged persons and if so at what
price, or how many Braille books the Borders or Barnes and Noble bookstore
chains should stock in each of their stores.”

Doev.Mutual
of Omaha Ins. Co., 179 F.3d 557, 560 (CA7 1999).

532 U.S. at __

Justice Scalia’s dissent – addressing an issue not
addressed by the majority therein and not dealt with by the Court to date – is
notable because it employsthe very same rationale as utilized in Ford
and its brethren, including Magee.Indeed, the passage from the Seventh Circuit’s decision cites the very
same book store/Braille example as employed in Ford and Magee.

Just as in Ford, Magee and the majority of
circuits to have decided the issue at hand, Justice Scalia found that the core
requirement of Title III is that a place of public accommodation is just that –
a place, and that, while the owner of such places must provide public access to
their goods and services to all members of the public, Title III “does not require a public accommodation to alter its
inventory to include accessible or special goods with accessibility features
that are designed for, or facilitate use by, individuals with disabilities.”NEWS UPDATE - March 23, 2017Department of Justice Requires University Websites to be ADA CompliantClick Here to read about the University of Cal Berkeley's march 2017 response.

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